1. It is a gross irregularity to hear a case without some terms
imposed, on an amended bill filed after replication, without leave
of the court.
2. So it is an irregularity to go to hearing without
replications to answers.
3. A petition by "way of cross-bill" which makes nobody
defendant, which prays for no process, and under which no process
is issued is a nullity.
4. A decree on such a bill praying the reverse of what the
original bill prayed is fatally erroneous. Nor will the fact that
objection was not made below cure a combination of errors so large
and so grave as above indicated.
Appeal from the Supreme Court of the District of Columbia in a
case of a bill by the Washington, Alexandria & Georgetown
Railroad Company against the City of Washington
Page 77 U. S. 300
and J. H. and A. T. Bradley and others, amended by the addition
of new defendants, and of a petition "by way of cross-bill," made
by one of the respondents in the case, referring to the case by
title and stating that "the facts fully appear in the case,"
praying the reverse of what the complainant had prayed, but not
making anybody defendant nor praying process, and under which no
process was obtained, the decree appealed from having been a decree
in accordance with the prayer of this "cross-bill."
MR. JUSTICE SWAYNE, who thus gave them and delivered the opinion
of the Court.
The appellants are the complainants in the case. The original
bill made the corporation of Washington and Joseph H. Bradley and
A. Thomas Bradley only defendants. The prayer of the bill was that
the defendants, Joseph H. and A. T. Bradley, should be enjoined
from selling, under a deed made to them as trustees for the
security and benefit of the corporation of Washington, the railroad
described in the deed of trust, and that the deed should be ordered
to be delivered up and cancelled. The defendants answered. The
complainants filed a replication. A preliminary injunction was
granted forbidding the sale of the road. Subsequently the
complainants filed an amended bill whereby they made George W.
Riggs and A. T. Keickover, partners, under the name of Riggs &
Co., James C. McGuire, D. P. Lengham, and James P. Kibbreth,
defendants in addition to those made by the original bill. All the
defendants were duly served with process except Lengham and
Kibbreth. McGuire answered. Kibbreth also answered, and thus became
a party to the record. Lengham did not appear. The corporation of
Washington and J. H. and A. T. Bradley failed to answer the amended
bill. Riggs & Company also failed to answer, and it was
ordered, as to them, to be taken as confessed. No such order was
made as to the corporation of Washington
Page 77 U. S. 301
and the trustees in the deed of trust. No further replication
was filed by the complainants. Testimony was taken on behalf of the
corporation of Washington. The case was referred to an auditor. In
this condition of things, the defendant Kibbreth filed a cross-bill
wherein he alleged that he was the holder of certain securities
endorsed by the corporation of Washington and secured by the deed
of trust, and prayed that the preliminary injunction should be
dissolved and that the trustees should be required to proceed to
sell the trust property for the benefit of the
cestui que
trusts. This bill makes no defendants and asks for no process.
None was issued. It appears by the record that the cause came on to
be heard upon this cross-bill, and was reserved to the court in
bank. In that court it appears that the case came on to be heard on
the answer and cross-bill of Kibberth, the original and amended
bills of the complainants, the answers, exhibits, and testimony,
and that the court decreed that the preliminary injunction should
be dissolved, that the trustees should proceed to sell the trust
property in the manner prescribed by the deed of trust, and bring
the proceeds of the sale into court, and that all further questions
arising in the case should be reserved for future consideration and
adjudication. This appeal is prosecuted to reverse that decree.
The record is voluminous; we have adverted to its contents only
so far as is necessary to develop the points which we think must
control the determination of the case. Several important questions
involving the merits of the controversy have been argued by the
counsel both in the briefs submitted and at the bar. In our view of
the case, it is needless to examine them. We have therefore given
them no consideration.
The reference to the auditor was not revoked, and he made no
report. For aught that appears to the contrary, the case is still
before him for the purposes specified in the order.
The amended bill was filed without the leave of the court,
Page 77 U. S. 302
after the cause was regularly at issue. This was in violation of
the 29th rule of equity practice prescribed by this Court. That
rule provides as follows:
"After replication filed, the plaintiff shall not be permitted
to withdraw it and to amend his bill except upon a special order of
a judge of the court, upon motion or petition, after due notice to
the other party, and upon proof by affidavit that the same is not
made for the purpose of vexation or delay or that the matter of the
proposed amendment is material and could not with reasonable
diligence have been sooner introduced into the bill, and upon the
plaintiff submitting to such other terms as may be imposed by the
judge for speeding the cause."
If the defendants, without laches on their part, had moved the
court to strike this bill from the files, it must have been done.
After the testimony was taken without the objection having been
made, the case presented a different aspect. But even then, such
action should have been taken and such terms imposed as would have
vindicated the rules of practice by which the court was governed
and the regular order of proceeding. To hear the case without any
order on the subject was a gross irregularity.
If the amended bill is to be considered as in the case, the
omission to file replications to the answers of McGuire and
Kibbreth was also an irregularity. The 66th rule is explicit on the
subject. The replication is necessary to put the cause at issue. If
the complainant omit to file it within the time limited, the
defendant is entitled as of course to an order for the dismissal of
the suit, unless the court or a judge thereof, upon cause shown,
shall allow it to be filed
nunc pro tunc upon such terms
as it may be deemed proper to impose.
Parties defendants are as necessary to cross-bills as to
original bills, and their appearance in both cases is enforced by
process in the same manner. [
Footnote 1] Without the aid of a cross-bill the court
could not have decreed the sale of the property covered by the
trust deed. It could only have dismissed
Page 77 U. S. 303
the bills of the complainants and have denied the relief sought.
[
Footnote 2] But the cross-bill
was a nullity. It was not before the court, and should have been
stricken from the files. The complainants prayed for an injunction
forbidding the trustees to sell. The court, upon the cross-bill and
according to its prayer, decreed a sale. This error is inevitably
fatal to the judgment given.
It is hardly necessary to repeat the axioms in the equity law of
procedure that the allegations and proofs must agree, that the
court can consider only what is put in issue by the pleadings, that
averments without proofs and proofs without averments are alike
unavailing, and that the decree must conform to the scope and
object of the prayer, and cannot go beyond them. Certainly without
the aid of a cross-bill the court was not authorized to decree
against the complainants the opposite of the relief which they
sought by their bills. That is what was done by the decree under
consideration.
There is a large class of cases in which it has been held that
objections not taken in the court below will not be allowed to be
taken in this Court. We do not intend to impugn this doctrine or to
narrow the limits of its just operation. But where there is such a
combination of errors, and errors of so grave a character as those
which mark the record in the case before us, this principle can
have no application.
Decree reversed and the cause remanded for further
proceedings in conformity to this opinion.
[
Footnote 1]
3 Daniell's Chancery Practice 1747.
[
Footnote 2]
Wickliffe v. Clay, 1 Dana 589;
Canochan
v. Christie, 11 Wheat. 446;
Eyre v.
Potter, 15 How. 56;
Price v. Berrington, 7
English Law & Equity 254.